Kothari Tulsidas Dullabhdas vs Kakasing Bisansing

Chhatpar, J.—This is an appeal from an order of remand by the District Judge, Bhavnagar and arises out of the following facts: The Appellant and the Respondent are owners of properties in the same compound. Between their houses there is a Fali -- an open yard. The Defendant''s passage to the public road lies through the Fall and through a Deli adjoining the Plaintiff''s property. Shortly before the filing of the suit the Defendant laid drainage and water pipes through the Fali and through the Deli connecting them with the public mains on the public street. The houses are situated in Bhavnagar wherein underground drainage system exists. The Defendant also attempted to get an electric connection in his house for which it was necessary to carry the wires over the Deli and the Fali. The Plaintiff filed a suit for mandatory injunction for removal of the water pipes and drainage pipes laid through the Fali and the Deli on the ground that the Plaintiff was an exclusive owner of both and that the Defendant had committed trespass by his action. He also claimed an injunction restraining the Defendant from carrying the electric wires over the said Fali and the Deli, which work had not then been started. The Plaintiff also claimed mandatory injunction for removal of certain ''Kundis'' which were laid in the Fali.

The two lower Courts held that the Fali was the joint property of the parties and that the Deli belonged exclusively to the Plaintiff but the Defendant had only the right of way over it. The lower appellate Court held that the Defendant was entitled to lay the water pipes and drainage pipes in the Fali as he was the joint owner thereof and that this use as a joint property was not detrimental to the interests of the Plaintiff, and as regards the Deli, the lower appellate Court held that since the water and drainage connections were made with the sanction of the Bhavnagar State authorities and since the filing of the suit and after the integration and formation of the State of Saurashtra, the Boroughs Municipal Act has been applied to the city of Bhavnagar and u/s 132 thereof an owner can carry his drains and water pipes over the property of a neighbour subject to payment at compensation under the Act, in the circumstances of the present case the Plaintiff was not entitled to a mandatory injunction directing the Defendant to remove the water and drainage pipes from the Deli, but that he should be paid compensation for it and for which purpose the case was remanded to the trial Court. As regards the Kundis objected to by the Plaintiff, there is no decision, but it appears these Kundis are simply man-holes and parts of the drainage system; so that the order relating to the drainage pipes would also include these Kundis. This is clear from the written statement of the Defendant in which the nature of the Kundis is described and there being no separate issue in respect of them and no discussion by the two lower Courts, the position as contended by the Defendant seems to have been accepted by the Plaintiff and the two lower Courts. From the decision of the learned District Judge remanding the case for determination of compensation to be paid to the Plaintiff, the Plaintiff has filed the present appeal.

Mr. Hathi, the learned Advocate for the Appellant has raised the following contentions: He has challenged the decisions of the two lower Courts that the Fali is joint properly and has contended that it is the exclusive properly of the Plaintiff. He has referred me to Ex. 6, a document between the predecessors-in-title of the parties which is a deed of partition. This is dated 29-4-1897; reference is made to this Fali and it is agreed therein that this would be the property of the two owners half and half. Mr. Hathi next tried to construe this part of the deed as meaning that the Fali was also divided by metes and bounds and the half portion adjoining the Plaintiff''s property should be deemed to have been awarded to the Plaintiff''s predecessor-in-title, while the other half similarly fell to the share of the Defendant''s predecessor-in-title; but after arguments, Mr. Hathi was obliged to concede that this interpretation of the deed was not tenable and that the deed simply recited the shares of the two owners without a partition by metes and bounds of the Fali. And indeed it could never have been the intention of the parties to have come to a partition about the Fali, because in that case the Defendant''s predecessor would have absolutely no right of egress or ingress to the street, the right of passage being confined to the Deli, there being no mention of such a right over the portion alleged to have been awarded to the Plaintiff''s predecessor. In any case the deed is not capable of the interpretation put by the learned Advocate for the Appellant.

Mr. Hathi next tried to contend that at some subsequent date the partition by metes and bounds of the Fali was made between the two owners. But he admits that beyond the word, of the Plaintiff, there is no other evidence and the Plaintiff himself gives no particulars of such partition. There is no proof that the Fali was at any time divided by metes and bounds; consequently the concurrent finding of fact of the two lower Courts that the Fali is the joint property of the parties stands.

The next point urged by Mr. Hathi is that the laying of the drainage pipes and water pipes in the joint Fali without the consent of the Plaintiff constituted a trespass and that the lower Courts should have ordered the removal thereof. The question of the rights of a co-owner in a joint property was recently construed by a Bench of this Court to which I was a party in -- Soni Khimji Mulji v. Popatlal Bhimji AIR 1951 Sau 85 , wherein one of the joint owners had constructed a ''Ravesh'' or a balcony over the joint property and it was held that this action was not detrimental to the interests of the Plaintiff. Consequently the Plaintiff''s suit for removal of the balcony was dismissed. In that case we considered the several rulings of the various High Courts including a recent Full Bench ruling of the Allahabad High Court in the case of -- Chhedi Lal and Another Vs. Chhotey Lal, , and our conclusion was that a co-owner is not entitled to an injunction restraining Anr. co-owner from exceeding his rights in the common property absolutely and simply on the ground of his co-ownership and without reference to the amount of damage to be sustained by the one side or the other from the granting or withholding of the injunction. We concluded by observing that in the absence of any inconvenience or injury to the Plaintiff''s right of passage over the common land and in the absence of any ouster of the Plaintiffs, no mandatory or permanent injunction could be issued to restrain the Defendant from constructing the said balcony. In the present case both the lower Courts have considered that it was within the rights of the Defendant as a coowner of the Fali to lay the water and drainage pipes in it. I see no reason to differ from this finding. The case decided by the Bench of this Court was very much stronger than the present one end yet the Plaintiff''s claim for the removal of the balcony was negatived. In the present case the Defendant is exercising his ordinary right of a co-owner in a big city like Bhavnagar in connecting his house with the public drainage and water works. His action cannot be construed at a trespass or in derogation of the alleged rights of the Plaintiff.

Mr. Hathi has next strongly urged that the Defendant''s action in laying the pipes in the Deli, which has been held to be the exclusive property of the Plaintiff, was in any case wrongful and that the lower Court should have ordered their removal instead of holding that compensation would suffice. No doubt it is true that a person has no right to carry his drainage over the property of Anr. without the latter''s consent unless such action is protected by any Municipal or local law. The learned District Judge observes as under:

In a city like Bhavnagar where the amenities of gutter connection and water pipe connection are available, the public at large should take advantage of these facilities. In para 28 of the written statement, it is stated that Darbar Shri has promulgated some rules for giving water connection to each and every house and there is a reference of the rules in para 9 of the judgment though they are not shown at the time of the argument. Exs. 39 and 41 are the copies produced from the record of the Public Works. Department of the former Bhavnagar State. The copies of the State record from Exs. 38 to 41 suggest that one who desired to take such connection of water pipe or gutter had to apply and after the requisite permission was granted the work was taken on hand. All such formalities had been done. It can therefore, be presumed that the rules must be analogous to Section 132 of the Boroughs Act. The said Act was adapted and applied to Bhavnagar Municipal limits from 1-7-1949 after the judgment of the trial Court was pronounced.: Retrospective effect may not have been given but looking to the facts of the case the appellate Court can grant the relief without the amendment. In Chitaley''s CPC under Rule 10 of Order 7 at p. 1806 (1950 Edition), it is laid down that "Where the facts are not in dispute and the accrual of a cause of action subsequent to the suit is under the terms of a statute of which the Courts must take notice a formal amendment of the plaint is unnecessary for the Court is bound to administer the law of the land at the date when it gives its decision on a dispute. -- Lakshmi Ammal and Others Vs. Narayanaswami Naicker and Others, .Here the case of the Respondent-Defendant is stronger in the way that he had obtained the permission for the gutter and water pipe connections.

With these observations of the learned District Judge. I entirely agree. It is unfortunate that the rules of the Bhavnagar State relating to obtaining water and drainage connection have not been produced before me, but from Exs. 38 to 41 it seems clear that the Defendant had obtained due permission of the State authorities for getting water and drainage connection. Even if the action of the Defendant could be considered initially wrongful, the present Section 132 of the Municipal Boroughs Act authorises an owner to carry his drainage and water pipes over the property of Anr. and there is only the question of compensation to be considered. Under the circumstances, the course adopted by the learned District Judge was the most reasonable and just.

Lastly, Mr. Hathi has raised the contention about the removal of the Kundis. These Kundis, according to the plan Ex. 36, are in the Fali itself which is the joint property. They are not reservoirs for depositing filth and filthy water but part of the drainage system. The same argument as regards the drainage pipes would apply to these Kundis as well.

As regards the electric connection, it is conceded that the Electricity Act has been applied and which authorises the authority licensed to supply energy to lay electric wires over the property of a neighbour subject to the provisions of the Act. Hence there is no question of the grant of an injunction. If and when electric connection is granted to the Defendant, the rights, of the parties will be governed by that Act.

The result is that this appeal fails and is dismissed with costs.